Navigating "Free Speech" for Service Members in the World of Social Media

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Navigating "Free Speech" for Service Members in the World of Social Media

By
Joseph L. Jordan, Attorney at Law
|August 24, 2015

"9/11 has officially been declared grandparents day by the Whitehouse.
Somebody please f**king kill Obama."

As Jeff B. Woodmansee's still-relevant piece from
The National Law Journal points out, you do not have to search long on social media to find military service
members airing their grievances against President Obama and his administration.
In "When Soldiers Go Social on Politics," Woodmansee examines
the free speech restrictions placed on members of the military, the prevalence
of critical social media posts against President Obama from these service
members, and the nuanced dilemma on whether or not they should be punished
for this activity.

Free speech does apply to members of the military, but with significant
caveats. Service members are held to a higher standard than civilians
and there have been court rulings and guidelines that define these standards.
The Uniform Code of Military Justice prohibits the use of "contemptuous
words" against the president and other high-ranking government officials.
As former Chairman of the Joint Chiefs of Staff Admiral Mike Mullen stated
in 2009: "The U.S. military must remain apolitical…and be
a neutral instrument of the state, no matter which party holds sway."

This concept has had precedent for some time. In the 1974 Supreme Court case
Parker v. Levy, a Navy doctor was punished for expressing anti-war sentiments and even
encouraging African-American soldiers to resist deployment to Vietnam.
In the ruling, the court expressed that limitations on military speech
are a "fundamental necessity for obedience, and the consequent necessity
for imposition of discipline, [which] may render permissible within the
military that which would be constitutionally impermissible outside it."
Thus, a clear distinction was made between the protections of the First
Amendment and the "different character of the military community
and of the military mission." As such, military members are largely
restricted from participating in partisan political activities.

Undermining the Chain of Command?

In 2012, Marine Sergeant Gary Stein was issued an other-than-honorable
discharge when it was found that he had started an Armed Forces Tea Party
Facebook page, where he had posted material like "I say screw Obama,
I will not follow all orders from him." While Stein and his case
became a rallying cause for some Conservative pundits, others felt that
Stein's actions were legitimately damaging to military morale and
integrity. "The Marine Corps cannot tolerate a noncommissioned officer
undermining the chain of command," said former Army colonel and military
prosecutor Tom Umberg of Stein's case.

Stein v. Dowling, however, embodies what many see as a dilemma on this issue—especially
in the time of such prevalent social media use. First of all, should a
distinction be made between valid, thoughtful criticisms of political
matters and other, less than constructive comments or the sharing of decisive
or inflammatory material? And if so, should military members be punished
at all for social media activity? As Woodmansee and many others have pointed
out, the military doesn't serve any one political party or administration—they
serve the Constitution. Military members remaining publicly apolitical
doesn’t only foster a consistent standard of dedication and service
no matter who’s in the White House, but also serves an important
role in preserving the free speech rights of the citizenry in which they
are tasked with defending.

Are you a military service member who is facing administrative or criminal
penalties due to your social media activity? If so, then we invite you
to contact
Joseph L. Jordan, Attorney at Law. Attorney Jordan has more than a decade of experience in the Army and
has traveled the globe to defend the rights of U.S. service members. He
has the knowledge, resources, and insight to ensure your rights and reputation
are fiercely spoken for.

Discover the difference a dedicated military law attorney can make.
Contact our firm today.

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